Cruz v. United States Parcel Service

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CESAR CRUZ, Case No.: 23cv430-AGS(LR) 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING DEFENDANT’S 14 UNITED STATES PARCEL SERVICE, MOTION TO DISMISS et al., 15 PURSUANT TO FEDERAL Defendants. RULE OF CIVIL PROCEDURE [16] 41(b) [18] [ECF No. 22] [19] 20 This Report and Recommendation is submitted to United States District Judge 21 Andrew G. Schopler pursuant to 28 U.S.C. § 636 (b)(1) and Local Civil Rule 72.1(c) of 22 the United States District Court for the Southern District of California. Presently before 23 the Court is an unopposed motion by Defendant Teamsters Union Local 542 (“Local 24 542” or “Defendant”) to dismiss this action based on Plaintiff Cesar Cruz’s failure to 25 prosecute and comply with court orders. (ECF No. 22.) For the reasons stated below, the 26 Court RECOMMENDS that: (1) Defendant’s motion be GRANTED in part, and (2) 27 this case be DISMISSED WITHOUT PREJUDICE. 28 / / / 1 I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY 2 Plaintiff, who is proceeding in this case pro se, filed a complaint on January 27, 3 2023, in Imperial County Superior Court against United Parcel Services (“UPS”) and Local 4 542 alleging forty-five causes of action related to his termination as a cargo loader at a UPS 5 location in El Centro, California in July of 2020. (See ECF No. 1-2 at 19.) Local 542 6 removed the complaint to federal court on March 9, 2023 and filed an answer on March 7 13, 2023. (See ECF Nos. 1-2.) After Plaintiff did not respond to an order to show cause 8 why his claims against UPS should not be dismissed for failure to serve that defendant, 9 Judge Schopler dismissed all claims against UPS without prejudice on April 20, 2023. (See 10 ECF No. 5.) 11 Plaintiff then failed to participate in a subsequent early neutral evaluation conference 12 and case management conference as ordered by the undersigned. (See ECF No. 11 at 2.) 13 After issuing a scheduling order regulating discovery and pretrial proceedings, the Court 14 reminded Plaintiff in another order on September 28, 2023 that he was required to 15 participate in the early neutral evaluation process, as well as the meet and confer process 16 with Local 542 in preparing a joint discovery plan pursuant to Federal Rule of Civil 17 Procedure 26(f). (See id. at 4 .) Citing a declaration provided by defense counsel as well 18 as its own attempts to remind Plaintiff of the missed hearings through a brief telephone 19 conversation with the Court’s law clerk, the Court’s order explained that Plaintiff had 20 knowingly and intentionally violated multiple requirements from previous orders, and that 21 further noncompliance could result in sanctions in the future. (See id. at 2-4 .) 22 Despite the Court’s warning about noncompliance with discovery requirements and 23 court orders, Plaintiff has not made any further efforts to prosecute this case since his 24 failure to participate in the early neutral evaluation. After Plaintiff failed to participate in 25 the submission of a joint motion for entry of a protective order with opposing counsel (See 26 ECF No. 12-1 at 35-6), as well as a subsequent telephonic case management conference 27 (See ECF No. 14), the Court issued an order to show cause why he should not be sanctioned 28 for his repeated failures to comply with court orders. (See ECF No. 15.) The order to show 1 cause set an in-person hearing on March 13, 2024, before the undersigned regarding the 2 appropriate sanctions, which Plaintiff similarly did not participate in or request a 3 continuance of. (See ECF No. 19 at 2.) The Court ordered Plaintiff to pay Defendant 4 $2,800 in monetary sanctions as a result of the costs incurred by his failure to participate 5 in several previous hearings, and warned Plaintiff that further noncompliance with court 6 orders would likely subject him to additional sanctions as provided for in Federal Rule of 7 Civil Procedure 16, up to and including an order dismissing this action in whole or in part. 8 (See id. at 3-4 .) To date, Plaintiff has not filed a notice of payment indicating that he paid 9 Defendant the required monetary sanctions. (See generally Docket.) 10 After Plaintiff failed to appear at a telephonic informal discovery conference 11 regarding his failure to provide any form of discovery responses to properly propounded 12 discovery by Defendant on March 18, 2024, Defendant indicated its intention to file a 13 motion to dismiss for failure to prosecute pursuant to Federal Rule of Civil Procedure 14 41(b). The Court then issued a briefing schedule, which required any response to 15 Defendant’s motion to be filed by Plaintiff on or before April 22, 2024. (See ECF No. 21.) 16 The instant motion to dismiss followed. (See ECF No. 22 (“Mot. to Dismiss”).) Defendant 17 contends that dismissal of Plaintiff’s complaint is now warranted because Plaintiff has 18 made no effort to prosecute this case since its removal to federal court over a year ago. 19 (See id. at 2 .) Additionally, Defendant’s counsel includes multiple exhibits in support of 20 the motion, which describe her efforts to communicate with Plaintiff about court orders 21 and his repeated failure to respond to meet and confer requests despite some 22 communications early in the litigation. (See ECF No. 22-2, Fern Steiner Decl. (“Steiner 23 Decl.”), Exs. 1-15.) Plaintiff did not oppose the motion. (See generally Mot. to Dismiss.) 24 The orders imposing monetary sanctions on Plaintiff and setting the briefing schedule for 25 Defendant’s motion to dismiss were returned as undeliverable to Plaintiff’s last known 26 address on April 8, 2024. (See ECF Nos. 24 & 25.) 27 / / / 28 / / / 1 II. LEGAL STANDARD 2 Rule 41(b) provides in pertinent part: 3 If the plaintiff fails to prosecute or to comply with [the federal rules] or a court order, a defendant may move to dismiss the [4] action or any claim against it. Unless the dismissal order states 5 otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the merits. [6] 7 Fed. R. Civ. P. 41(b). Courts have repeatedly recognized, however, that “[d]ismissal . . . 8 is so harsh a penalty it should be imposed as a sanction only in extreme circumstances.” 9 Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996). Given the potential 10 for such an extreme result, courts must usually first consider less drastic alternatives, 11 such as “arranging for substitute counsel or [] continuing the proceedings in order to 12 allow plaintiff to come into compliance with a pretrial order.” Von Poppenheim v. 13 Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1053 (9th Cir. 1971). “The 14 district judge, however, need not exhaust [all alternatives] before finally dismissing a 15 case.” Id. at 1053-1054 . 16 Ultimately, a district court is required to weigh five factors when determining 17 whether to dismiss a case for failure to prosecute under Rule 41(b): “(1) the public's 18 interest in expeditious resolution of litigation; (2) the court's need to manage its docket; 19 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 20 cases on their merits and (5) the availability of less drastic sanctions.” Henderson v. 21 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).1 “[The Ninth Circuit] ‘may affirm a [24] 1 The same five factors used to determine whether dismissal is warranted under 41(b) are used to 25 determine whether terminating sanctions are appropriate under Rule 37(b)(2). See Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (noting that the standards governing dismissal under 26 Rule 16(f), which allows sanctions authorized by Rule 37(b), as well as under Rule 41(b) “are basically the same.”). Although several of the cases cited in the Court’s discussion of these factors in Section III, 27 infra, considered whether dismissal was proper pursuant to Rule 37(b)(2), the discussion of the required factors under Ninth Circuit precedent nevertheless provides a useful comparison for the Court’s analysis [28] 1 dismissal where at least four factors support dismissal, . . . or where at least three factors 2 strongly support dismissal.’” Yourish v. Cal. Amplifier, 191 F.3d 983 , 990 (9th Cir. 3 1999) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). 4 Additionally, it is important to note that the relevant rules, including the ones that 5 govern involuntary dismissal, apply not only to litigants represented by counsel, but to 6 parties who are proceeding pro se with equal force. While a party’s “‘lack of counsel 7 may be considered in evaluating the willfulness of discovery violations and the failure to 8 obey court orders and in weighing other factors regarding dismissal . . . pro se status does 9 not excuse intentional noncompliance with discovery rules and court orders.’” Arellano 10 v. Blahnik, Case No.: 16cv2412-CAB (MSB), 2019 WL 2710527 , at *5 (S.D. Cal. June 11 28, 2019) (quoting Sanchez v. Rodriguez, 298 F.R.D. 460, 470 (C.D. Cal. 2014)), report 12 and recommendation adopted, 2019 WL 3429232 (S.D. Cal. July 30, 2019). This 13 district’s Civil Local Rule 83.11 similarly requires pro se parties to comply with court 14 orders, in addition to keeping “the [clerk of court] advised as to current address.” 15 III. DISCUSSION 16 Defendant contends that four of the five dismissal factors set out by the Ninth 17 Circuit above strongly favor dismissal due to Plaintiff’s continued failure to prosecute 18 this case, and requests that the case be dismissed with prejudice. (See Mot. to Dismiss at 19 4-7.) The Court will address each factor in turn below. 20 A. The Public’s Interest in Expeditious Resolution of Litigation 21 The public has an “overriding interest in securing ‘the just, speedy, and 22 inexpensive determination of every action.’” In re Phenylpropanolamine (PPA) Prods. 23 Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (quoting Fed. R. Civ. P. 1). Thus, 24 “[t]he public’s interest in expeditious resolution of litigation always favors dismissal.” 25 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish, 191 F.3d at 26 990). Plaintiff’s failure to participate in the discovery process in any meaningful fashion 27 since the Court’s order setting the case management conference in this case has hindered 28 the expeditious resolution of this matter by stalling the litigation before fact discovery 1 could begin. Though cases should generally be disposed of on their merits, Plaintiff here 2 is ultimately responsible for prosecuting this case so that it could reach such a 3 disposition. This included responding to defense counsel’s requests to formulate a joint 4 discovery plan, exchanging information regarding fact discovery in this case, and 5 attending court-ordered hearings related to the discovery process, such as telephonic case 6 management conferences. This factor accordingly favors dismissal. 7 B. The Court’s Need to Manage its Docket 8 This factor weighs in favor of dismissal when the Court is forced to address a 9 party’s failure to prosecute a case or comply with court orders. See Pagtalunan, 291 F.3d 10 at 642 . The Court has sua sponte continued multiple discovery-related hearings in this 11 case to allow Plaintiff adequate opportunities to participate in the litigation process if he 12 chose to do so, and held an in-person order to show cause hearing related to his failure to 13 participate in a court-ordered case management conference. See Section I, supra. 14 Plaintiff has neither participated in these hearings nor requested any extensions of time or 15 accommodations to do so. While part of the Court’s motivation in resetting these 16 hearings was to present Plaintiff with additional opportunities to participate in the 17 litigation process or explain to the Court why he may need additional time to do so, these 18 events have nevertheless forced the Court and opposing counsel to expend valuable time 19 addressing Plaintiff’s failure to prosecute this case. This factor therefore favors dismissal 20 as well. 21 C. Risk of Prejudice to Defendant 22 Although the Ninth Circuit has noted that the mere pendency of a lawsuit on its 23 own is insufficient to warrant dismissal, see In re Phenylpropanolamine, 460 F.3d at 24 1228, “[a] defendant suffers prejudice if the plaintiff’s actions impair the defendant’s 25 ability to go to trial or threaten to interfere with the rightful decision of the case.” Id. at 26 1227 (internal citations omitted). Even where no specific finding of prejudice is made, a 27 lack of prejudice is not determinative where “counsel continues to disregard deadlines, 28 warnings, and schedules set by the district court.” Henderson, 779 F.2d at 1425 . 1 Defendant correctly points out that Plaintiff’s failure to cooperate with the discovery 2 schedule in this case deprives it of the ability to properly formulate defenses to the claims 3 in Plaintiff’s complaint. (See Mot. to Dismiss at 5.) Furthermore, without the ability to 4 obtain information that it is entitled to through the course of discovery, Plaintiff could 5 conceivably appear for the remaining hearings in the Court’s scheduling order without 6 Local 542’s ability to examine any evidence of testimony that he may have provided in 7 this case. This factor accordingly weighs in favor of dismissal. 8 D. Public Policy Favoring Disposition of Cases on the Merits 9 As noted above, although public policy strongly favors disposition of cases on their 10 merits, a case that is unreasonably delayed by a party’s failure to comply with deadlines 11 and basic discovery requirements may never be able to reach that type of disposition. See 12 In re Phenylpropanolamine, 460 F.3d at 1128 (noting that the fourth factor “lends little 13 support to a party whose responsibility it is to move a case toward disposition on the 14 merits but whose conduct impedes progress in that direction.”) (internal quotations 15 omitted). Courts within this circuit have therefore routinely concluded that disposition of 16 cases on their merits is not furthered by litigants who refuse to provide discovery needed 17 for preparation of a defense against their claims. See, e.g., Arellano, 2019 WL 2710527 , 18 at *9 (considering the fourth factor neutral when the plaintiff’s actions prevented 19 disposition of the case on the merits). Plaintiff’s failures to comply with multiple orders 20 regarding discovery deadlines and hearings about the progress of the litigation have 21 placed this litigation in precisely such a predicament—Defendant has been unable to 22 obtain critical discovery that it may need in forming its defenses to Plaintiff’s claims. 23 Accordingly, the strong preference for disposition on the merits does not outweigh 24 Plaintiff’s failure to prosecute this case. Furthermore, as will be discussed in further 25 detail in Section III.E, infra, to the extent that this factor weighs against dismissal, any 26 such weight is mitigated by the Court’s decision to dismiss this action without prejudice, 27 which is a much less severe penalty than involuntary dismissal with prejudice. See White 28 v. Gonzales, Case No. 21-cv-04221-CRB (PR), 2024 WL 1659896 , at *5 n.4 (N.D. Cal. 1 Apr. 16, 2024) (“To the extent that the fourth Malone factor may weigh against dismissal, 2 that weight is mitigated by the court's decision to dismiss without prejudice.”) 3 E. The Availability of Less Drastic Sanctions 4 Under the final factor, district courts must consider less severe alternatives and 5 discuss them before electing to utilizing involuntary dismissal. See In re 6 Phenylpropanolamine, 460 F.3d at 1128-29 . Reviewing courts consider whether a district 7 court discussed the feasibility of less severe sanctions, implemented alternative sanctions 8 prior to dismissal, or warned the party of the possibility of dismissal. Malone, 833 F.2d 9 at 132. A “judge’s warning to a party that a future failure to obey a court order will result 10 in default judgment can itself suffice to meet the ‘consideration of alternatives’ 11 requirement.” Estrada v. Speno & Cohen, 244 F.3d 1050, 1057 (9th Cir. 2001) (quoting 12 Malone, 833 F.2d at 132 ). “Furthermore, explicit discussion of alternatives is 13 unnecessary if the district court actually tries alternatives before employing the ultimate 14 sanction of dismissal.” Id. (internal quotations omitted). 15 Defendant argues that this factor also favors dismissal because “the Court has 16 issued less drastic sanctions than dismissal and has repeatedly cautioned Cruz that 17 continued failure to prosecute and obey court orders could and now will likely lead to 18 dismissal. Cruz continues to fail to comply.” (Mot. to Dismiss at 5.) The Court agrees. 19 Plaintiff has been ordered to respond to Court orders and discovery requests from 20 opposing counsel multiple times to no avail. Additionally, as noted above, the Court sua 21 sponte continued multiple hearings and held them in both electronic and in-person 22 formats to give Plaintiff as many opportunities as possible to litigate this case if he chose 23 to do so. Each of these orders specifically warned Plaintiff that further noncompliance 24 could lead to additional sanctions, up to and including the dismissal of this case. (See, 25 e.g., ECF No. 11 at 4) (noting that further non-compliance could result in more severe 26 sanctions, up to and including dismissal of this action). To date, Plaintiff has neither 27 responded to any court orders nor participated in any hearings, and has not provided any 28 justification for his failure to prosecute this action. Furthermore, until April of this year, 1 court orders sent to Plaintiff’s last known address on the docket via US Mail were not 2 returned or reported as undeliverable. (See ECF Nos. 24-25.) It is therefore apparent to 3 the Court that further orders continuing hearings or allowing Plaintiff additional 4 accommodations to comply with the requirements of the litigation process would be 5 unlikely to change the trajectory of this case. 6 Apart from providing Plaintiff with ample opportunities to prosecute this matter, 7 sanctions less drastic than dismissal have also proved ineffective. After his failure to 8 appear at the order to show cause hearing regarding the appropriate sanctions for his non9 compliance, the Court concluded that monetary sanctions were appropriate to compensate 10 defense counsel for her time and resources expended in attending court hearings that 11 were unproductive because of this failure to participate. (See ECF No. 19 at 2-4.) 12 Plaintiff has not filed a notice of payment of these sanctions, and the Court has little 13 confidence that the imposition of further monetary sanctions would induce his 14 compliance in the future. Furthermore, discovery in this matter has not progressed 15 sufficiently for the Court to contemplate the use of evidentiary sanctions as an effective 16 penalty against Plaintiff. 17 Given Plaintiff’s failure to participate at this stage in the litigation, there is 18 realistically only one less drastic alternative available. Federal Rule of Civil Procedure 19 41(b) provides that a dismissal for failure to prosecute operates as an adjudication on the 20 merits “unless the dismissal order states otherwise.” The circumstances of this case, 21 including Plaintiff’s pro se status and his failure to respond to multiple attempts to 22 communicate with him by opposing counsel and the Court, demonstrate that dismissal 23 with prejudice would be unnecessarily harsh. (See, e.g., Fullen v. Mascher, No. CV 2224 08000-PCT-JJT (JZB), 2023 WL 2530311 , at *4 (D. Ariz. Mar. 3, 2023) (concluding that 25 dismissal without prejudice was more appropriate than dismissal with prejudice when the 26 plaintiff was proceeding pro se). Thus, while the Court concludes that this factor weighs 27 in favor of dismissal, dismissal without prejudice, as significantly less severe sanction 28 than dismissal with prejudice, see White, 2024 WL 1659896 , at *6, is more appropriate. 1 ||F. Conclusion 2 The Court’s consideration of the five factors above demonstrates that Plaintiff's 3 repeated failures to participate in this case are sufficient to justify involuntary dismissal 4 || for failure to prosecute under Federal Rule of Civil Procedure 41(b). Although Rule 5 ||41(b) operates as an adjudication on the merits by default and could result in dismissal 6 || with prejudice, the circumstances of this case, particularly in light of the fifth factor 7 || which considers the availability of lesser sanctions, do not warrant such a harsh result. 8 || Accordingly, dismissal without prejudice is more appropriate in this situation. 9 IV. CONCLUSION 10 The Court accordingly RECOMMENDS that: (1) Defendant’s motion to dismiss 11 || for failure to prosecute pursuant to Rule 41(b) be GRANTED in part insofar as it seeks 12 || dismissal of Plaintiff's complaint, (2) and that this matter be DISMISSED WITHOUT 13 || PREJUDICE. 14 IT IS ORDERED that no later than July 12, 2024, any party to this action may 15 || file written objections with the Court and serve a copy on all parties. The document 16 ||should be captioned “Objections to Report and Recommendation.” 17 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 18 Court and served on all parties no later than July 26, 2024. The parties are advised 19 || that failure to file objections within the specified time may waive the right to raise those 20 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449 , 455 (9th 21 || Cir. 1988). 22 IT IS SO ORDERED. 23 Dated: June 24, 2024 [24] 25 / 2 26 Honorable Lupe Rodriguez, Jr. 27 United States Magistrate Judge